Less can be more at trial

The Wall Street Journal had an article this morning entitled “Lawyers will be lawyers, dumping more on juries than they can process.” The premise of the article basically was that giving a jury too much evidence works against you.

It’s an occupational hazard: Lawyers, being lawyers, are loath to leave out a single stone of the fortress of evidence they are building, lest it prove to have been the keystone. Prosecutors are tempted to anticipate and counter every argument the defense might make. They sometimes forget that they are also storytellers, who by trade rely on judicious selection — and omission.

The article relates this mostly to white collar cases, but I think it can apply in any type of case. If you bore the jury to death, your less likely to win. And as a defense tactic, sometimes the only thing you can do when you are facing overwhelming evidence is to muddy the waters. If the state calls too many witnesses, it could dilute their message. For instance, in a murder trial, by the time the state gets done calling its dugout of witnesses, the defense hopefully will have muddied the waters enough that the jurors missed any clear message from the prosecution and really don’t remember everything that was said.

– John H. Bryan, West Virginia Attorney

1 thought on “Less can be more at trial

  1. The old saying that chain is only as strong as its weakest link holds a lot of truth. It’s much more of an art than science to construct a case. Sometimes cases are lost because of compelling cross-exanmination of a witness on what are really either collateral matters or sometimes just cumulative evidence that was presented through a stronger witness. Events that would never have occurred unless the prosecutor called the witness and/or opened the door on direct.

    The best cases are linear — a direct “chain” leading directly to the desired conclusion. It is often a mistake to add links that either lead somewhere other than the desired conclusion (collateral evidence not directly probative of an element of the offense) or simply provide secondary links to the conclusion that are weaker than the primary link.

    A jury might not realize that the collateral evidence is not necessary to sustain proof of the essential elements but only see that it was dubious or unpersuasive. The jury might not understand that the discrediting of the secondary or cumulative witness didn’t undermine the primary witness and that link remains. In fact, it may cause the jury to doubt a primary witness more than if the weaker secondary witness was never presented. It’s sensible for a jury to assume the prosecution must have preceived a weakness in the primary evidence or it would not have bothered to introduce the secondary evidence.

    The fear of being called out by the defense for omissions in the case-in-chief is real but often overestimated. “Why didn’t we hear from _____” can sometimes work, but it often be answered with “because ____ wasn’t necessary because of ____, ____ and ____, and if the defense really thought ___ was important why didn’t he call ____ as a witness?

    Sometimes the defense will call ____, but in a great many cases there is no “gotcha” momenbt that can be elicited from ____, and maybe even more often it is very unlikely the defense will call ___ because ____ is often an adversary witness and it’s not often good strategy for a defendant to call an adversary witness, when the substance of his testmony adds (even if very slightly) to the prosecution’s case, just for the purpose of being able to argue the jury should discreit his testimny. Why take the chance the jury will disagree and credit his testimony enough to draw negative inferences against your client?

    It’s usually better to keep the jury from hearing bad things about your client than to have it hear them and then argue for the jury not to believe them. You are allowed to impeach your own witnesses but it’s much less effective than impeaching the other side’s witnesses.

    So, why do prosecutor’s often lard up their cases and make them unecessarily tedious and confusing? The best ones don’t but those that do usually suffer from a fear of missing something that is rooted in not understanding their own cases as well as they should. when you know exactly what you need to prove and the best way of proving it you know what you can safely omit. When you don’t, you throw everything you’ve got and hope enough of it connects.

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